The subject regulation, 34 C.F.R. 200.56(a)(2)(ii), provided that a “highly qualified teacher” could include a teacher who has “demonstrated satisfactory progress toward full certification” in an alternative route to certification (i.e., an intern program). In Renee v. Duncan (9th Cir. 2010) 623 F.3d 787 (“Renee”), the Ninth Circuit held that the regulation was impermissibly broad in its interpretation of the NCLB’s definition of a “highly qualified teacher”, which requires a teacher to have already “obtained full State certification as a teacher . . . ”. The Renee court held that the Regulation was “inconsistent with the unambiguously expressed intent of Congress.”
In December, President Obama signed federal legislation passed by Congress in response to a September 2010 decision by the United States Ninth Circuit Court of Appeals invalidating a federal regulation that included teaching interns within the definition of a “highly qualified” teacher under the No Child Left Behind (“NCLB”) Act. (See Lozano Smith Client News Brief No. 46 (Nov. 2010).)

Congress responded to the Renee decision by adding a provision to the Continuing Appropriations and Surface Transportation Extensions Act of 2011 to indicate that interns are considered “highly qualified” under the NCLB. The legislation provides that “A ‘highly qualified teacher’ includes a teacher who meets the requirements in [the regulation], as published in the Federal Register on December 2, 2002.”

This legislative determination that interns can be “highly qualified” under the regulation is valid from the date of enactment, December 22, 2010, “through the end of the 2012-2013 academic year.” The plaintiffs’ counsel in Renee has indicated that plaintiffs may again challenge the inclusion of interns in the definition of “highly qualified.” Lozano Smith will continue to track this issue and provide updates on any new developments.